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Re: Law on photography update

Originally Posted by cyrus

THomas the whole point is that the guy who is a hobbyist recreational photographer is not out to seek or impart any idea to anyone else. So your question is irrelevant to the issue. He is not communicating anything to anyone. He is just taking photos for his own personal enjoyment.

Cyrus, it is not absolutely necessary, IMO, that that the hobbyist have the intent "...to seek or impart any idea to anyone else." He has the well enshrined right to seek and receive for his own gratification and knowledge. Indeed civilization would not have advanced to its current stage without the hobbyist. Wittness the advent of photography itself as an example. Again:

Based on John Milton's arguments, freedom of speech is understood as a multi-faceted right that includes not only the right to express, or disseminate, information and ideas, but three further distinct aspects:
the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

That should have been laid out before the court in the case you cited but it never was and the court, even if requested for in the relief, is not bound to state your case for you.

Re: Law on photography update

the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

Oh Tomas, I only wish Milton was binding legal authority but it isn't. In any case, with respect to:

the right to seek information and ideas;
the right to receive information and ideas;
the right to impart information and ideas.

These are all forms of communication of information and ideas. The point of this discussion however is about non-communicative photography - photography that is done not for the purpose of seeking, sending or receiving any information or ideas. It is rather done just because you enjoy doing it.

However, in the legal-philosophical writings about of the 1st Amendment, there IS the idea that freedom of expression has communicative as well asnon-communicative justifications. Apart from being necessary for good governance and the discovery of truth and other communicative justifications, the freedom of expression is a basic prerequsite for autonomy and self-realization. Unfortunately, the Supreme Court case of Texas v. Johnson, which the Porat decision relied upon in concluding that hobbyist photography was not protected speech, did not mention those things as being part of the process of deciding when speech should be protected.

Re: Law on photography update

I don't think we've (yet) reach the point where cops can unreasonably dictate what you can and cannot do on the streets

Originally Posted by BrianShaw

Well, maybe. But my understanding is that these kind of "trumped up" charges would generally get resolved before court.

My point in saying that the decision is 'discretionary' is not that it is necessarily "unreasonable" or "trumped up". No, the cop can quite validly and legitimately think that you as a photographer who is taking a photo on a sidewalk are causing annoyance and disrupting the flow of traffic or loitering or whatever, and tell you to move on. See, that wasn't the case in the past. In the past, when ALL photography (whether communicative or non-communicative) was considered to be a constitutional right, legally the cop could not simply demand that you move along, but had to take into consideration that you had a constitutional right to take photos in a public place. Causing "public inconvenience" etc was not a sufficient justification to overcome your constitutionally protected right to take photos. The worst they could do was impose some sort of permit requirement but even then all sorts of additional constitutional protections would exist and had to be met by the authorities, all to ensure that your fundamental right to take photos was not infringed upon. And if they violated your right to take photos, you could sue them (as a number of photographers have done.)

But now that taking photos is not deemed to be constitutionally protected, then the cop can treat you in the same category as the guy who insists on playing hacky-sack on a crowded sidewalk. The cop can demand that you move along and can do so merely based on his own opinion (whether subjectively valid or trumped up) that you're potentially causing some sort of problem. Your conduct of taking photos in public is deemed to be no more legally protected than playing hackey sack or flying a kite. And no, there's no permit you can apply for either.

Re: Law on photography update

For what it's worth:

American Convention on Human Rights

Article 13. Freedom of Thought and Expression
1.Everyone has the right to freedom of thought and expression. This right includes freedom to seek, receive, and impart information and ideas of all kinds, regardless of frontiers, either orally, in writing, in print, in the form of art, or through any other medium of one's choice.
2.The exercise of the right provided for in the foregoing paragraph shall not be subject to prior censorship but shall be subject to subsequent imposition of liability, which shall be expressly established by law to the extent necessary to ensure:
1.respect for the rights or reputations of others; or
2.the protection of national security, public order, or public health or morals.
3.The right of expression may not be restricted by indirect methods or means, such as the abuse of government or private controls over newsprint, radio broadcasting frequencies, or equipment used in the dissemination of information, or by any other means tending to impede the communication and circulation of ideas and opinions.
4.Notwithstanding the provisions of paragraph 2 above, public entertainments may be subject by law to prior censorship for the sole purpose of regulating access to them for the moral protection of childhood and adolescence.
5.Any propaganda for war and any advocacy of national, racial, or religious hatred that constitute incitements to lawless violence or to any other similar action against any person or group of persons on any grounds including those of race, color, religion, language, or national origin shall be considered as offenses punishable by law.

Signed by the Unites States but not yet ratified.

Universal Declaration of Human Rights
Article 19.
Everyone has the right to freedom of opinion and expression; this right includes freedom to hold opinions without interference and to seek, receive and impart information and ideas through any media and regardless of frontiers.

Adopted by the United States.

Sorry Cyrus but I doubt that your argument would (and it shouldn't!) hold-up under a reasoned judicial opinion provided that the case is properly set-forth and presented before them.

Re: Law on photography update

Originally Posted by BrianShaw

Thanks, Cyrus, for your further explanation in post #113. I'm starting to think that this is an interesting topic but of little practical relevance.

You don't consider the fact that you don't actually have a "right" to photography in a public place to be of any practical relevance? Your choice. But the "photo rights" handouts and books that say you have a right to engage in public photography are wrong. You only have this right for "communicative" photography and that excludes everyone who engages in photograph for their own enjoyment.

Re: Law on photography update

However, until the Porat decision, it USED TO BE safe to assume that the photographer had a constitutionally protected right to take photos and so the cops were out of line -

So tomorrow if you're out taking photos, just because you enjoy taking photos and for no other reason , and a cop tells you to stop, you have no right to refuse, and you have no valid reason to challenge his command in court.

Yes it is.

No, you never had that right.

No, you are wrong. They can't stop me from photographing per se. There is no law against photography. They can tell me to move on for some other reason, which I CAN challenge in court. I do not know how to explain it any other way. Photography is not illegal.

If you see my name, you'll know I live in NYC. If you saw other posts about getting harassed, you will see I have been harassed. I understand the situation, and it is not anywhere near as dire as you think it is.